Nadine Nasser Donovan, Esq.
Steven Babitsky, Esq.
What is the pyramid problem?
Many forensic accounting firms whose employees act as expert witnesses suffer from a serious “pyramid problem.” This is a term we at SEAK Inc. use to describe a company which has many accountants performing expert witness work, yet just a select few at the top of the pyramid do most of the testifying at hearing, depositions, and trial.
How common is the problem?
It is very common to have a forensic accounting firm with dozens or even hundreds of accountants crunching numbers, doing research, and drafting reports for the senior partners. These firms will have only a handful of partners who travel across the country testifying in all or almost all the companies’ litigated cases.
Why is it a problem that only a handful of the forensic accountants do most of the testifying?
There are many reasons why this approach to forensic litigation is a serious problem. These problems include:
- Testifying expert getting ill, retiring, dying, or getting burned out.
- Scheduling conflict of testifying expert, requiring last minute substitution of undertrained expert at deposition and trial.
- High turnover due to lack of training and advancement among the rank and file.
- Lost billing/profit due to limitations on how much the firm can bill for non-testifying experts.
Example 1: High powered expert gets ill
One company that we at SEAK Inc. worked with had a major case assigned to one of the few testifying experts in the company. Unfortunately, that expert had a serious heart attack prior to the trial. The judge refused to grant a postponement. The firm was forced to put forth the junior expert who knew the case but had never testified before despite 7 years’ experience at the firm. The retaining law firm and the forensic accounting firm were very worried about how the expert would do and called on us at SEAK Inc. to assist and help get this expert prepared to testify. Ultimately, the expert did well. All parties agreed that this should not be allowed to happen again. The firm undertook a robust training program for all its experts. This firm has widely expanded and is now doing very well.
Example 2: Having undertrained expert at deposition/trial
We at SEAK Inc. were contacted by forensic accounting firm who was interested in setting up a testifying training program for their experts ASAP. We later learned this company had sent an expert with little testifying training/experience to a deposition on a large case. The expert imploded at the deposition. The retaining law firm (one of the expert’s company’s largest clients) was irate, and abruptly fired the forensic firm from all its pending and future cases, resulting in a $5 million loss.
Example 3: High turnover rate
This forensic accounting firm provided little or no testifying training for its experts. They suffered from the “pyramid problem” with only a few experienced experts traveling around the country testifying. The remaining experts’ role was limited to performing research, writing, and supporting these testifiers. The younger experts who were receiving no training saw little room for increasing their skills and advancement resulting in a very high expensive turnover rate.
How can forensic accounting firms avoid/overcome the “pyramid problem?”
- Start a testifying training program for all the experts in the company. This will help accomplish several important goals:
- The company will have more experts ready, willing, and able to testify when needed.
- These experts will immediately do a better job in their support role as they will better appreciate the litigation process, the value of their contribution to the testifying expert’s success, and the need for precise, error-free work.
- The experts who receive the testifying training will be more likely to stay with the company.
- Once these experts start to testify, their hourly rate can be raised resulting in additional income for the company.
- Accept some smaller assignment which the company might normally reject and have the less experienced experts work them up from intake through deposition and trial. This empowering of the experts is an excellent way to build the “bench” and the future of the company.
- Have the testifying experts take non-testifying experts to their deposition and trials so they can gain some real-world experience. Gradually let these experts take deposition with assistance and direction.
- Work with key law firm clients (who face the same pyramid problem) to make junior experts available as mock experts for litigation skills programs.
Conclusion
To thrive long-term, forensic accounting firms should commit to formally training their entire complement of experts in testifying skills. The companies that make a serious commitment to this training are in the best position to expand, thrive, and prosper, both short and long term.
About the authors
Nadine Nasser Donovan, Esq., is SEAK’s Lead Onsite Trainer and has been on the SEAK Faculty since 2002. She has trained countless experts in testifying skills, report writing, and practice development at SEAK conferences, customized on-site expert witness training programs, and via one-on-one training and mentoring. Nadine is the co-author of the SEAK texts How to Be An Effective Expert Witness at Deposition and Trial: The SEAK Guides to Testifying as an Expert Witness, How to Be a Successful Experts Witness: SEAK’s A-Z Guide to Expert Witnessing, and How to Write an Expert Witness Report. She is also a Legal Writing Instructor at Boston University School of Law, and a FINRA Arbitrator. Nadine can be reached at 617-791-4282 or nadine@seak.com.
Steven Babitsky, Esq. is the President and founder of SEAK, Inc., the Expert Witness Training Company. He was a personal injury trial attorney for twenty years and is the former managing partner of the firm Kistin, Babitsky, Latimer & Beitman. Steve has helped expert witnesses and their attorneys prepare to testify in a broad range of cases, including accounting antitrust, patent, medical malpractice, wrongful death, computer forensics, and many others. He has trained the Federal Bureau of Investigation and the Federal Aviation Administration, and he has worked with numerous forensic and financial companies including Fortune 500 companies. He is the co-author of the text How to Be an Effective Expert Witness at Deposition and Trial: The SEAK Guide to Testifying as an Expert Witness. Steve trains hundreds of experts every year. Steven can be reached at 508-548-9443 or stevenbabitsky@seak.com.